Jerry Eversole's Trial: The Winners and Losers

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Jerry Eversole surprised a lot of people when he escaped conviction on bribery charges.

A hung jury ended in a mistrial, but prosecutors expect to take another swing at it soon.

In the meantime, everyone is poking through the wreckage of that first attempt. There were winners and there were losers, and no one better to hand out the laurels and raspberries than KPRC legal analyst Brian Wice, a regular winner of law-related Best of Houston® honors.

His take:

This month's Trial of the Century, the political corruption proceeding against long-time Harris County Commissioner Jerry Eversole and his long-time friend, Mike Surface, went into overtime, and even then jurors were still unable to reach a verdict. Keeping in mind that litigation is, in the words of Gordon Gekko in Wall Street, "A zero sum game: somebody wins, somebody loses," here is my roster of those folks who got to pour Gatorade over their heads, and those who, at least for the time being, went home empty-handed. Or worse.

THE WINNERS Jerry Eversole Because Eversole got to walk out of the front door of the federal courthouse with his wife and kids and not out the back door with the United States Marshals, he was a big winner. At least for now.

But after listening to prosecutors detail his seemingly shady financial dealings with his long-time pal, mega-developer, former chairman of the Houston Sports Authority, and co-defendant, Mike Surface, Eversole, who was a better-looking version of Clint Eastwood before Wayne Dolcefino and the FBI dogged him, has got to sense that his best days as a powerful pol are behind him. Having walked between the raindrops on a perjury beef that went away in state district court in the late '90's (his appellate lawyer, Cathy Cochran, is now a Court of Criminal Appeals judge), Eversole knows that he came within a coat of paint of being a ward of the federal government if a pair of hold-out jurors hadn't stuck to their guns. Make no mistake, when this sequel comes to a courtroom near you later this year, the feds are going to be dusting off the hot-seat for the commish.

Rusty Hardin Hardin gambled big and won bigger with his all-in ploy of resting Eversole's case behind the prosecution, arguing to the jury that the feds' case was so termite-ridden that the presumption of innocence was enough to create reasonable doubt, a stratagem I expect him to retire.

Look for at least some defense witnesses -- but not Eversole -- to provide a little more context at the re-trial to the notion that Eversole and Surface were nothing more than good friends. As he has since his days as an assistant Harris County DA, Hardin immediately seized control of the courtroom from his two younger adversaries, winning the moot court round with an amalgam of folksy charm and ersatz moral outrage that these out-of-town G-men had no business putting Harris County government on trial. Hardin may not be the best criminal defense attorney in town, but after garnering a mistrial with a defense that had more holes than the Iraqi Navy, he is, as they say on the PGA Tour, the leader in the clubhouse.

Judge David Hitner Judge Hitner is no stranger to high-profile trials, including the upcoming trial of alleged Ponzi-schemer Sir Allan Stanford, and the last great political corruption trial in town, the 1998-1999 trials of former Houston city council members Ben Reyes, John Castillo, Michael Yarbrough, and John Peavy, Jr. (Reyes was convicted, the others were not). A devoted Brooklyn Dodger fan who grew up in the Borough of Churches, Hitner handled this hotly-contested slugfest with the aplomb of a veteran home plate umpire in Game 7 of the World Series, calling balls and strikes consistently, and letting the players and not his calls dictate the outcome.

Hitner also showed his legal creativity after the jury was deadlocked, taking the unprecedented step of giving both sides an additional 30 minutes to re-argue after asking the jury to address the areas that were hanging them up. Hitner also defused the tension endemic to any high-profile trial by displaying a wry sense of humor so many federal judges put in a blind trust when they get lifetime tenure and a good parking spot.

THE LOSERS The Department of Justice Public Integrity Prosecutors Given the strength of their case, John Pearson and Peter Mason, the prosecutors from the Department of Justice's Public Integrity Section, undoubtedly believed they were going back to D.C. with Eversole's ass in their briefcase. So what went wrong?

More than likely a lethal cocktail of Hardin's charisma, the lack of a distinct home-field advantage that prosecutors enjoy in state court, and what two jurors saw as the lack of a clear and unambiguous quid pro quo that underscored the corrupt nature of Eversole's dealings with Surface. But Pearson, who grew up in Houston, and favors a younger incarnation of one-time federal racket-buster Rudy Guliani, minus the lisp and the comb-over, knows that he and Mason better pack a silver bullet in their checked baggage if they want to take down a man who has been an icon of county government since the Summer of '42.

The County Attorney's Office Under state law, Harris County Attorney Vince Ryan has the power to file a suit seeking Eversole's removal from office. One of the most interested onlookers in the front row was Ryan's first assistant, Terry O'Rourke, a 21st-century Madame Defarge in an Ivy League suit, who waited for Eversole's head to roll. Had the jury convicted instead of hanging, Ryan and O'Rourke could have filed the removal action even before the ink was dry on the verdict forms without fear of being publically castigated for jumping the gun.

While there is no requirement that Eversole be convicted of any crime before he can be removed -- several jurors who voted to convict expressed their belief that Eversole should get the boot without passing go and collecting $200 -- Ryan and O'Rourke will no doubt wait for a jury to pull the trigger before they do.

Mike Surface In federal court, where defendants who are jointly indicted are ordinarily jointly tried (a powerful edge for prosecutors where guilt by association is usually enough for most jurors to convict on a conspiracy count), Surface caught a huge break when his trial was severed from Eversole's when the latter insisted on a speedy trial against Hardin's advice.

But while Surface was gone from the trial, he was certainly not forgotten. Any time the prosecutors alluded to any of the more than $100,000 treasure trove of swag Eversole was charged with corruptly receiving, they followed it up by emphasizing that Surface was the gift that kept on giving. "Friends don't do that -- co-conspirators do," was a sound bite that permeated the prosecutors' final arguments. Unfazed by the jury's split of 10-2 for conviction on the bribery counts, Surface's lawyer, Chip Lewis, a Zelig-like figure whose DNA seems to be part of every high-profile criminal case in town, told the media that the hung jury was actually a good sign for his client. Really? Lewis' bromide reminded me me of what noted legal sage Eric Stratton ("Rush chairman-damn glad to meet you") said in Animal House: "It's gotta work better than the truth."

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